Big Court Win

Why Did Wendland's Wife Stop His Antibiotics?

By Christopher Zehnder

"Do you have pain? Yes.

"Do your legs hurt? No.

"Does your buttocks hurt? No.

"Do you want us to leave you alone? Yes.

"Do you want more therapy? No.

"Do you want to die? No answer."

Picture two men, one asking the questions, the other responding, not in speech, but on an "augmented communications device" or "yes/no board." The questioner, a doctor, seeks to learn how far the cognitive recovery of the respondent, his patient, has progressed. This is an all-important question for the patient, Robert Wendland; it could determine whether he will be fed, or left to starve to death.

This "conversation" took place in 1997, almost four years after Robert Wendland rolled his truck in a high-speed accident. For several months after the accident, Wendland was in a coma; but sometime in late 1994 or early 1995 his wife, Rose, noticed signs of responsiveness in him. By late spring of 1995, Robert's "cognitive responsiveness" had improved to where he could throw and catch a ball, operate a wheel chair (with some assistance), draw an "R", make circles and follow two-step commands. Robert couldn't feed himself, though, and received food and fluids through tubes inserted in his stomach. In 1996, Rose, in consultation with her daughters and Robert's brother, decided not to approve another operation to replace the dislodged feeding tubes, though she had approved similar treatment three times before. Robert would have been left to die, but for the intervention of his mother, Florence, and his sister Rebekah.

So began what anti-euthanasia groups and advocates for the disabled believe a pivotal court case. Florence and Rebekah instituted court proceedings to keep Robert's doctor from removing the feeding tubes. (The doctor had inserted a feeding tube through Robert's nose while the hospital's ethics committee decided whether to accede to Rose's decision to forgo the operation to replace the tubes in Robert's stomach.) Rose Wendland, then, petitioned the court to make her Robert's "conservator," which, according to court records, gave her the authority "to withdraw and/or withhold medical treatment and/or life-sustaining treatment, including, but not limited to, withholding nutrition and hydration."

In subsequent proceedings, the trial court decided that a conservator did not have the authority to order the removal of life-sustaining assisted hydration and nutrition unless he could give clear and convincing evidence that the conservatee, while still competent, would want to die under the circumstances. Failing that, the conservator must prove that to remove the tubes would be in the conservatee's best interest. The trial court ruled that Rose Wendland, as Robert's conservator, had not met the clear and convincing evidence standard, and so found in favor of Florence Wendland and her daughter, Rebekah.

The clear and convincing standard for evidence is a very high standard, being the one required for criminal cases. Rose Wendland's attorney argued that, in the case of Robert Wendland, the court should apply the lower standard -- preponderance of the evidence -- the standard required for civil cases. Such cases, involving life and death decisions, argued Rose's lawyer, should best be decided by the family of the afflicted, not the courts.

Rose appealed the ruling, and the court of appeals reversed the trial court's decision. While, in the opinion of the appeals court, the trial court "properly placed the burden of producing evidence" on the consevator and "properly applied a clear and convincing evidence standard," the trial court "erred in requiring [the conservator] to prove that [the conservatee], while competent, expressed a desire to die in the circumstances." The trial court should have been content "merely to satisfy itself that the conservator had considered [the conservatee's] best interests."

The California Supreme Court granted a review of the appeals court decision. Though, while oral arguments were being given in July 2001, Robert Wendland died of pneumonia, the supreme court did not dismiss the case. "The case," wrote the court, "raises important issues about the fundamental rights of incompetent conservatees to privacy and life, and the corresponding limitations on conservators' power to withhold life-sustaining treatment." On August 9, 2001, the supreme court gave its decision. Writing for the unanimous court, Justice Werdegar said: "we conclude a conservator may not withhold artificial nutrition and hydration from such a person absent clear and convincing evidence that the conservator's decision is in accordance with either the conservatee's own wishes or best interest.... We reverse the decision of the Court of Appeal."

The Wendland case dealt specifically with section 2355 of the California probate code." As revised in 1999, this section of the probate code allows conservators to refuse health care -- even care necessary to preserve the life of a conservatee -- "in accordance with the conservatee's individual health care instructions, if any, and other wishes to the extent known to the conservator." If the conservatee's wishes are unknown, then the conservator "shall make the decision in accordance with the conservator's determination of the conservatee's best interest."

Though Rose Wendland's attorney argued that the probate code required only a preponderance of the evidence standard, the supreme court noted that the drafters of section 2355 relied on Drabick, an earlier California Supreme Court decision. Since Drabick addressed only conservators of unconscious conservatees, the supreme court argued that a higher standard of evidence must apply where conservators decide to end the lives of conscious, though incompetent, conservatees.

Rita Marker, an attorney with the Steubenville, Ohio-based Ethics and Advocacy Task Force of the Nursing Home Action Group, filed an amicus curiæ ("friend of the court") on behalf of Florence and Rebekah, The Wendland case, said Marker, "was a very narrow case that dealt with conscious conservatees; no one refuted the fact that Robert Wendlund was conscious. This case [if decided for Rose Wendland] would have ratcheted up the situation and widened the circle of those from whom food and fluids could be removed. The court in its decision made it very clear that they were not addressing people who were terminally ill or diagnosed (or mis-diagnosed, I always add) as being in a persistent vegetative state. Nor does this apply if someone has named an agent in a power of attorney for healthcare, or if they have left written instructions. This applies only in those cases where there is a court-appointed conservator who seeks to make these life and death decisions."

If the court's decision in Wendland was so narrow, wasn't it, I asked Marker, merely a finger in the dyke, a holding action against the onslaught of anti-life legislation? Marker didn't see it as such. "I think those of us who are seeking to protect vulnerable people snatch defeat out of the jaws of victory," she said, " and we tend to minimize the importance of victories in protecting vulnerable people. I think this was an attempt to bring in a flood that would engulf the most vulnerable of vulnerable people -- conscious people, but severely brain-damaged, or mentally retarded or mentally ill people for whom the court could have appointed a conservator who did not know them at all and who could have had the power to end that their life. So this was not sticking the finger in the dyke; this was putting up a strong protective barrier."

Marker said she was not disappointed that the supreme court, though taking the Drabick decision to task (saying that it "took to a novel conclusion the idea that a person's right to refuse treatment survives incompetence" -- that is, granting that right to a consevator), did not overturn it. "We were not going to go back," she said, "and revisit absolutely every case and say, well, we don't agree with this and want you to overturn this and that at the same time." Still, she noted, it was "really interesting that, in fact, the court referred to Drabick." Does she hope that, in the future, Drabick might be overturned. "It would not be appropriate at this point to say that that's a possibility," said Marker.

Rita Marker said she found nothing disappointing in the Wendland decision -- except the position of those on the other side of the case. "The Wendland decision," she said, "is a magnificent decision;" because of it, "conscious, vulnerable people will be not be victimized in the way the other side sought to do."

Attorney Jon Eisenberg, who filed an amicus curiæ for 43 ethicists and some California healthcare associations (including Catholic Healthcare West and the Alliance for Catholic Health Care) on behalf of Rose Wendland, told me he was disappointed by the debate in the Wendland decision because it "focused so much on the degree of consciousness. I think that draws the focus away from autonomy," he said, "and towards a subjective assessment of the quality of life, which I don't like to see, because everybody's assessment can be different. I would not want to live like Robert, but I can understand how many people would, and would make that choice -- and I would want them to have that choice. Once you make the decision dependent on degree of consciousness, you've focused away from personal autonomy, which is something our secular society is founded on -- the idea that people should have control over their lives and their own bodies."

To Eisenberg, the Wendland decision was not a great victory for what he called the "right to life movement." It was, he told me, "certainly a great victory, from their perspective, for people who don't make any advanced end-of-life planning. It was not for people who do."

Eisenberg said that when the court insisted on clear and convincing evidence in the Wendland case, it implied that the preponderance of evidence standard would result in Robert's death. Before his accident, Robert, according to Rose and his brother, Michael, had made statements indicating that he would not want to live like a "vegetable." Katie, Robert's daughter, testified that he said "if he could not be a provider for his family, if he could not do all things that he enjoyed doing, just enjoying the outdoors, just basic things, feeding himself, talking, communicating ... he would not want to live." Such evidence, said Eisenberg, would have satisfied the preponderance of evidence standard, "if Robert had designated Rose as his surrogate or agent, or had executed an advanced directive. What it means is that, from the perspective of Florence's advocates, people who have not executed any advanced directives, who have not designated a surrogate or agent are 'protected,' enjoy the protection of the higher standard." Those who have designated an agent or made an advanced directive would not enjoy this higher standard of legal protection.

Janie Siess, the attorney who represented Florence Wendland, disagreed with Eisenberg. "Those in the disability rights community," she said, "those against euthanasia, or anybody who believes in the sanctity of human life, see this case as the victory that it is," she said. "This is a huge defeat to the right to die movement; it is the third case that has looked at this issue and has ruled against them." In 1995, the Michigan Supreme Court ruled in a case involving a similar scenario, said Siess: a man in a condition similar to that of Robert Wendland, a wife who wanted the feeding tubes removed, and a mother and sister who opposed her. In this case, the wife tried to appeal the decision to the Supreme Court, which refused to hear the case. Michigan drew the line for the removal of assisted hydration and nutrition at consciousness, as did courts in Wisconsin and New Jersey.

That the supreme court of California has joined those of Michigan, Wisconsin and New Jersey in drawing a line at consciousness will have an impact on courts in other states who will have to decide on similar cases. These decisions will have a "domino effect," said Rita Marker. "That's clear," she said, "from the fact that the California court actually did cite the Wisconsin, Michigan, and New Jersey cases."

According to Janie Siess, Rose Wendland had no good reason to order the removal of Robert's feeding tubes. She had no financial obligations; the state of California paid for Robert's treatment after his insurance ran out. Since 1996, said Siess, Rose Wendland and the children had effectively abandoned Robert; the only one to visit him were hospital staff and his septuagenarian mother, Florence. (Rose's lawyer, Lawrence Nelson, confirmed this for me; "It's true," he said, "the frequency of their visits went down. They didn't see him getting any benefit" from the treatments, said Nelson, and found it a "heartbreak to see him in that condition.")

Three to four days a week, said Siess, Florence Wendland took the bus to the hospital, and spent the entire day with Robert. "Florence is a devout Christian," said Siess. "She prays, and she gets these little devotional magazines. She would read these to Robert, and she said he really enjoyed hearing those daily devotionals. She prayed with him and sang little Bible songs to him. You know that old hymn, "In the Garden"? [refrain: "He walks with me and He talks with me, and He tells me I am his own..."] It's kind of hokey. That's one of Florence's favorite songs. She would sing that to him."

The difference between Florence and Rose Wendland, said Siess, is significant. "Florence Wendland looked at her son," said Siess, "and he was still her son. And she always loved him, the way a woman loves her child; for her, the glass was half full. Rose Wendland looked at Robert Wendland and no longer saw the man she'd married, and no longer loved him for the man that he was now as opposed to the man he used to be. For her, the glass was half empty, or totally empty. One woman had a profound prejudice against a man who became disabled, and against the disabled in general, to the point of wanting him to die; another woman had no prejudice and just accepted him in his changed condition."

Jon Eisenberg had told me that he thought it "so cosmically ironic" that Robert died during the court proceedings that would decide his fate. Said Eisenberg: "I will ponder that event for the rest of my days as to who had a hand in that and why and what." I asked Siess about Eisenberg's enigmatic statement; did someone have a hand in Robert Wendland's death?

"I'll tell you who had a hand in it," said Siess. "Rose Wendland went out to the hospital when she learned Robert had pneumonia. She told them to stop giving him antibiotics. My source for that information is the Los Angeles Times." (On July 17, the Times said, quoting Lawrence Nelson: "At some point during his illness, Rose Wendland 'made the decision that aggressive treatment was not in his interest, and he was kept comfortable.'") "I went to the trial court," continued Siess, "and to the appellate court to get information about Robert's illness, to get my doctor in to examine him and to find out what was going on with him, and they both denied me. I was literally at the clerk's office at the supreme court filing an emergency petition at the moment of Robert's death."

But, ultimately, who had a hand in Robert Wendland's death? "It was God," opined Siess. "It was God. I suspect that the supreme court vote had already decided the case, at the point where Robert died. God knew that, and God knew that Robert had fulfilled his purpose here. Robert was meant to live and to survive in his disabled state, I believe, long enough for this decision to be made."